As the entire country sits in wait for the ‘Almighty ‘verdict of the Supreme Court in the now globally famous election petition case, I crave your indulgence to take you down memory lane, on a journey of national pride, where I shall point out to you the many instances, where the courts have delivered judgements that have substantially aided the constitutional development of our society. These judgements have invariably promoted national cohesion, a situation that should really give us confidence, that on August 29, the Judiciary will rise to the occasion again.
On this journey, we will be reminded of the trail of highly charged political cases, whose decisions, even when they produced a clear winner and an obvious vanquished, yet promoted national cohesion and particularly enhanced constitutional democracy. We will discuss the facts and verdict of cases such as Sallah vs. Attorney General, Bilson vs. Rawlings, the 31st December case, among other issues.
Let me first of all share with you a famous quote from a book entitled The Judge by Lord Patrick Devlin. It’s a quotation that was applied by Justice Aikins as a prelude to his opinion in the case of J. H Mensah vrs Attorney General.
“If a Judge leaves the law, and makes his own decision, even if in substance they are just, he loses the protection of the law and sacrifices the appearance of impartiality which is given by adherence to the law. He expresses himself personally to the dissatisfied litigant and exposes himself to criticism. But if the stroke is inflicted by law, it leaves no sense of individual injustice; the losing party is not a victim who has been singled out: it is the same for everybody he says…”
Sallah vs Attorney General
The case of Sallah vs. Attorney General (1970) was fought on the critical question of the effect of a coup d’tat on the legal institutions of a country. The plaintiff, Mr Sallah, had been appointed as Managing Director of the GNTC.
The law provided that any person, who held an office established by the NLC (the government preceding the Progress Party government), would continue to act in that office for six months unless such a person was either re-appointed to that office by the same authority or appointed to another office. In effect, the law gave the power to the government to terminate appointments of public officials.
The political background is that the Progress Party government of Prime Minister Kofi Abrefa Busia had won an extensive majority in the election that heralded the era of the Second Republican Constitution. The Government decided to apply this law to remove 568 public servants from office.
The faith that Mr Sallah exercised in the court, that they will do justice in a matter against a very popular government, was rewarded when the Supreme Court ruled, by a majority decision, that the purported dismissal of Mr Sallah, pursuant to the first schedule of the 1969 constitution, section 9, was unconstitutional. The court had spoken against the views of the government’s Attorney General and sent a clear signal that the rule of law was to be strictly applied irrespective of who was at the receiving end of the stroke of justice. If the Sallah case had gone the other way………your guess is as good as mine
In the case of Bilson vs. Rawlings, (1993-94) 2 GLR, the plaintiff, Mr Bilson, having observed that the National Democratic Congress(NDC) had selected the Chairman of the PNDC, Flt Lt Rawlings, as its presidential candidate for the impending presidential elections, instituted an action at the high court for a declaration that JJ Rawlings was not a citizen of Ghana and sought a further restraining order on the Interim National Electoral Commission (INEC) from taking further steps to complete the process for JJ Rawlings to become a presidential candidate.
The court held that given the fact that JJ Rawlings had been a member of the Ghana Armed Forces and also two-time Head of State, he would have sworn the oath of allegiance to Ghana. It held further that Mr Bilson had failed to prove that JJ Rawlings possessed citizenship of any other country. The court thus held that JJ was qualified to lead the NDC in 1992 elections. If the Bilson vs. Rawlings case had gone the other way… your guess is as good as mine
The 31st December case
In the 31st December Case, (1993-94) 2 GLR, the Supreme Court was called upon to make a determination as to whether or not the continuous celebration of 31st December as a public holiday, even under a constitutional regime was contrary to the spirit of the Constitution.
PNDC regime had celebrated 31st December as a public holiday since 1982. It had become an important event for the image and symbolic authority of now elected president JJ Rawlings. Given that Mr Rawlings had been elected as a civilian President with a comfortable majority, it was thought that the celebration of 31st December was to announce to the conservative politicians, that not much has “changed” around the pivot of power.
As the opposition felt the betrayal of the process that were procured to secure a transition to civilian rule, they decided, to exercise a modicum of faith in the Supreme Court and test the legality of that matter.
The court held, agreeing with the plaintiffs, that the intended celebration of 31st December as a public holiday would glorify coups d’état and could undermine the peoples resolve to resist coups, to that extent, the Supreme Court ruled, by a majority decision, that the celebration of 31st December would be unconstitutional and contrary to the spirit of the constitution.
Therefore, that day could not be declared as a public holiday. If the decision in 31st December had gone the other way… it may have lasted only up until 2001 when the NPP took office and to all intents and purposes, the NPP government would have changed the status quo, the court would have been embarrassed for its ruling, but alas, the ruling has stood the test of time.
The NPP vrs GBC
In the case of the NPP vs. GBC, the court was called upon to determine whether or not the law that established the state broadcaster intended to ensure that fair and equal opportunity be made available for the expression of all shades of opinion, to enable the country evaluate information on a broad kaleidoscope.
The NDC government had delivered its first budget and had reviewed petroleum prices upwards by 60 per cent. The contents of the budget had been severely criticised by the opposition NPP in a well-publicised press conference. GBC’s flagship news and current affairs programme “talking point” had recorded an edition in which the budget had been discussed by a panel including the NPP representative, Kwame Pianim. During the first broadcast of the show, the programme was taken off TV for unstated reasons. Subsequently, the finance minister, Dr Kwesi Botchway, collected two hours of airtime on state TV and radio, to explain the basis of the outcomes in the budget.
The opposition NPP then wrote to GBC, the state broadcaster, requesting to be allowed the same amount of time to explain their position on the budget. When the request was refused by GBC, the NPP, expressing their faith in the Supreme Court, decided to test the decision of GBC at the court.
The court held that ‘Equal access’ meant the same or identical terms and conditions for gaining entry into the state-owned media for the purpose of presenting their political, economic and social programmes to the electorate and persuading them to vote for their candidate at the election.
Further, that ‘Equal access’ meant the same time or space had to be given to each political party, on the same terms, and that the officers of GBC had no discretion in the matter.
As a consequence of this pivotal ruling by the Supreme Court, Ghana stands tall among other countries when it comes to the amount of time that the state broadcaster dedicates to opposition parties. Today, access to state media for opposition parties has been extended to include live coverage of political party conferences. If, therefore, the democracy of today is enriched by the accessibility that parties have to the studios of GBC, it all began at the Supreme Court.
On Thursday, August 29, 2013, the Supreme Court will announce its verdict in the now famous election petition, history beckons, and we are anxious, but do have confidence in the Supreme Court of Ghana. For they have done it before, and they can surely do it again. God Bless Ghana…
By Paul Adom Otchere/Daily Graphic/Ghana
